8 comments:

Yeah, I'd been hearing Souter for a while too. Originally I had also guessed it would be Stevens, though I believe Souter . After Ginsburg's recent health problems, I actually figured that would make her less likely to retire soon; she's seemed pretty defiant in the wake of all that.

Anyway, I have absolutely no clue about the lower levels of the judiciary, so I can't even begin to hazard a guess. But with the Senate firmly in Democratic hands, I imagine Obama's term could see quite a few retiring Justices replaced with liberal minds. Let's just hope they're Lawrence v. Texas liberals rather than Kelo v. New London liberals. (There's probably a better analogy, but for whatever reason those were the two that occurred to me.)

Unfortunately, in the Supreme Court, those were the same liberals. Go fig.

Anyways, I'm hoping for a real hardcore liberal in the mold of Thurgood Marshall. But we'll probably get a moderate liberal in the mold of Ruth Bader Ginsburg. (Yeah, she's considered the far left of the Supreme Court now. That's because the court has become much, much more conservative over the last 30 years.)

Yeah Matt, I saw that decision and was both surprised and not. From a true conservative standpoint, the decision makes sense. But Thomas and Scalia have frequently rendered decisions counter to true conservative values in favor of the culture wars (see the aforementioned Lawrence, which always seemed to me to be a clear violation of Equal Protection). Every now and then, I'm surprised by the Court's split on a case. But usually the only wild card is Anthony Kennedy.

But if I remember correctly (and I might not), Lawrence didn't even make it the real equal protection questions (the heightened standards of strict or intermidiate scrutiny) because Kennedy decided that moral legislation couldn't even be a rational basis for a law, much less a compelling justification. I think that was what Scalia was railing against in that case, and so like the other justices, didn't really consider whether the law properly weighed the interests.

I'll be honest, for the most part I've found Scalia to be fairly consistent. Kennedy is definitely the wild card. Before it was O'Connor... and man, that card was wild.

Of course, when it comes to sexual morality between consenting adults, Kennedy was right. But not knowing how exactly Kennedy worded the Court's decision, I can understand Scalia's objection. For example, clearly killing somebody in cold blood is immoral, and I doubt Kennedy was saying the government shouldn't legislate against that. But if the opinion didn't make any distinction, I can understand Scalia's objection.